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Determination

Title:
McEnery -v- Commissioner of an Garda Síochána
Neutral Citation:
[2016] IESCDET 11
Supreme Court Record Number:
S:AP:IE:2015:000071
Court of Appeal Record Number:
A:AP:IE:2015:000029
High Court Record Number:
2013: 242 JR
Date of Determination:
01/22/2016
Composition of Court:
Denham C.J., Laffoy J., Charleton J.
Status:
Approved

___________________________________________________________________________


Supporting Documents:
Application for Leave to Appeal. McEnery v Comm. of an Garda Siochana.doc

Respondents Notice. McEnery v Comm of an Garda Siochana.doc


An Chúirt Uachtarach

DETERMINATION

      Between:
Martha McEnery
RESPONDENT
AND

Commissioner of An Garda Síochána

APPLICANT

APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION

RESULT: The Court makes an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 16th day of October 2015 by Kelly J, with Finlay Geoghegan and Peart JJ concurring; [2015] IECA 217.

REASONS:

1. This determination concerns an application brought by the applicant, the Commissioner of An Garda Síochána, in which the applicant seeks a determination under Article 34.5.3° of the Constitution to allow an appeal to this Court from the decision of the Court of Appeal delivered on the 16th day of October 2015 by Kelly J, Finlay Geoghegan and Peart JJ concurring.

2. The applicant Commissioner of An Garda Síochána was the respondent in High Court proceedings entitled Martha McEnery v Commissioner of An Garda Síochána, High Court record number 2013/242JR. Those proceedings sought an order of certiorari quashing the decision of the Commissioner to dismiss the respondent from being an officer of An Garda Síochána. Kearns P considered the summary dismissal procedure as set out in Regulation 39 of the Garda Síochána (Discipline) Regulations, 2007 as having been validly exercised. The High Court held that: it is not for the courts to decide what amounts to conduct sufficient to warrant the summary dismissal of a garda - that is a matter solely for the Garda Commissioner and the Minister; that the Commissioner did in fact consider Martha McEnery unfit for retention in An Garda Síochána and was not in any doubt as to the material facts constituting the breach of discipline involved, namely criminal conduct in the form of an assault contrary to s.2 of the Non-Fatal Offences Against the Person Act 1997; and that while the existence of the summary dismissal power was unusual and exceptional, the necessity of such power was accepted in previous superior court decisions. Kearns P refused the reliefs sought and awarded costs to the Garda Commissioner. This decision was appealed by Martha McEnery to the Court of Appeal, wherein it was sought to reverse the decision of the High Court thereby obtaining summary judgment against the applicant.

3. In the judgment of the Court of Appeal of 16th October 2015, the Court of Appeal allowed the appeal and made an order quashing the decision of the Commissioner to dismiss the respondent herein. The key point raised by the applicant on her appeal to that court was that the summary dismissal was exclusively confined to the certificate of conviction. The applicant contended that the certificate of conviction cannot in and of itself amount to all the material facts. It was contended that this approach did not comply with the applicable law to dismissal of a serving garda. In delivering the Court of Appeal judgment, Kelly J upheld this argument, and ruled that the respondent had confused and conflated two quite separate matters – namely the material facts and the relevant breach of discipline. According to Kelly J, on the plain wording of Regulation 39, the Commissioner must not be in any doubt as to (i) the material facts and (ii) that the relevant breach of discipline is of such gravity that both "the facts and the breach merit dismissal" before the power of summary dismissal could be exercised. The Court of Appeal was of the view that this requirement emphasises the distinction between the material facts and the breach of discipline.

4. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; provides for the full and original jurisdiction of the High Court; under Article 34.2 establishes the Court of Appeal; and under Article 34.5.3° sets out its appellate jurisdiction. This reads:

      4 1° The Court of Appeal shall—

      i save as otherwise provided by this Article, and

      ii with such exceptions and subject to such regulations as may be prescribed by law,

      have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

5. Article 34.4 of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from decisions of the Court of Appeal. This is set out in Article 34.5.3° and 4° of the Constitution. The former relates to appeals where there has been a determination by the Court of Appeal and the latter where a litigant seeks to come directly from the High Court to the Supreme Court. The article relevant to this appeal, that where the Court of Appeal has already given judgment on a matter, is now quoted:
      3° The Supreme Court shall, subject to such

      regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—

      i the decision involves a matter of general public importance, or

      ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.

6. The decision of the Supreme Court under Article 34.5.6° is in all cases “final and conclusive.”

7. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied either that the relevant decision of the Court of Appeal “involves a matter of general public importance” or, alternatively, that it is, “in the interests of justice”, necessary that there be an appeal to this Court. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal” to this Court. The statutory framework for the exercise of the right to apply to this Court for such leave is to be found in the Court of Appeal Act, 2014, and in particular the provisions of s. 44 of that Act which inserts a new s. 7 into the Courts (Supplemental Provisions) Act, 1961. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.

8. The Constitution has retained the entitlement of one appeal as of right from the High Court, subject to express exclusions or regulation by statute from the High Court to the Court of Appeal. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.

9. On the question of an issue, or issues, of general public importance, the applicant Commissioner of An Garda Síochána contends that these proceedings raise a matter of far-reaching public importance in relation to the use by the Commissioner of An Garda Síochána of the summary dismissal procedure laid down in Regulation 39 of the Garda Síochána (Discipline) Regulations 2007. It is asserted that the judgment of the Court of Appeal effectively makes the summary dismissal procedure unworkable in a case such as this where the breach of discipline is criminal conduct, the relevant proof of which is said to be conviction. It is further argued that clarification of the circumstances in which the power of summary dismissal of a garda convicted by a jury of a criminal offence can be utilised is a matter of general public importance and providing clarity on this issue is in the interests of justice. It is also submitted that the judgment of the Court of Appeal has significant implications for the Commissioner's ability to maintain discipline in An Garda Síochána and thus for public confidence in our national police force. Similarly, the applicant argues that the decision of the Court of Appeal seriously detracts from the power of the Commissioner to deal with misconduct in the force, notwithstanding that the Oireachtas in permitting the Regulations and the Minister in making the Regulations intended the Commissioner to have such a summary power of dismissal in cases such as this.

10. The respondent, Martha McEnery, opposes the application for leave to appeal. It is claimed: that the matter is not one of general public importance, but of limited importance regarding the statutory interpretation of a limited power; that no evidence to the effect that the judgment of the Court of Appeal renders the use of the summary procedure impossible was submitted before the High Court or Court of Appeal; and that the Court of Appeal has already clarified the circumstances in which the power of summary dismissal can be utilised.

11. From the standpoint of the tests whereby this Court may assume jurisdiction to allow an appeal from a judgment of the Court of Appeal under Article 34.5.3° of the Constitution, the applicant, the Commissioner of An Garda Síochána, has met the necessary criteria. The points made are of general public importance; the judgment of the Court of Appeal has significant implications for the Commissioner's ability to maintain discipline in An Garda Síochána and thus for public confidence in An Garda Síochána. Therefore, the decision of the Court of Appeal impacts more generally and outside the specific and individual circumstances of this case. Similarly, clarification of the circumstances in which the power of summary dismissal of a garda convicted of a criminal offence, by a jury or by a judge summarily, can be utilised in disciplinary proceedings is a matter of general public importance

12. On the ground of general public importance, as set out in Article 34.5.3°, this Court has an entitlement under the Constitution to allow an appeal from the Court of Appeal in this case and proposes so to do.

13. It follows that the applicant is entitled to appeal this case to the Supreme Court.

AND IT IS HEREBY ORDERED ACCORDINGLY



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